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Electoral Act: Putting 2019 elections in danger

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Electoral Act: Putting 2019 elections in danger

AKEEM NAFIU writes on the dangers inherent in President Muhammadu Buhari’s refusal to append his signature to the Electoral (Amendment) Bill 2018 forwarded to him by the National Assembly

 

Introduction
158 days to the 2019 general election, federal lawmakers’ quest for a revised Electoral Act aimed at guaranteeing free and fair polls has remained a dream.
Reason: President Muhammadu Buhari has again withheld his assent to the revised Electoral (Amendment) Bill 2018.
His refusal to append his signature to the revised electoral bill may have put the 2019 general election on trial.
The 2019 elections in Nigeria will be the country’s sixth general election since 1999 when the military handed power to a democratically elected government after years of military dictatorship.
However, some of the previous elections in the country had been tainted by acts of violence, attacks on politicians and vote rigging which often had influenced outcome of the elections.
But following growing clamour by Nigerians for more credible, free and fair elections, the National Assembly set machinery in motion to amend the 2010 Electoral Act which birthed the Electoral (Amendment) Bill 2018.
After concerted legislative considerations, the revised Electoral Bill 2018 was forwarded to President Buhari.
But his refusal to assent to the Bill has remained a major source of concerns for many Nigerians particularly as the 2019 elections draw closer.

Background
President Buhari had on the 3rd March, 2018, refused to sign the initial Electoral Amendment Bill sent to him by the National Assembly.
In a letter to the President of the Senate, Dr. Bukola Saraki, and the Speaker of the House of Representatives, Yakubu Dogara, President Buhari faulted the bill, accusing the National Assembly of usurping constitutional powers of the Independent National Electoral Commission (INEC) to decide on election matters, including fixing dates for elections and the order they would be held.
Besides, President Buhari predicated his refusal to sign the Bill on the need for him to comply with the requirements of Section 58 (4) of the Constitution.
Buhari’s letter to the National Assembly in March partly reads: “Pursuant to Section 58(4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), I hereby convey to the Senate, my decision on 3rd March, 2018, to decline presidential assent to the Electoral Act Amendment Bill 2018 recently passed by the National Assembly.
He went on: “Some of my reasons for withholding assent to the bill include the following: the amendment to the sequence of the elections in Section 25 of the principal Act may infringe upon the constitutionally guaranteed discretion of the INEC to organise, undertake and supervise all elections provided in Section 15(a) of the Third Schedule of the Constitution.
“The amendment to Section 138 of the principal Act to delete two crucial grounds upon which an election may be challenged by candidates, unduly limits the rights of candidates in elections to a free and fair electoral review process.
“The amendment to Section 152 Subsection 325 of the principal Act may raise constitutional issues over the competence of the National Assembly to legislate over local government elections”.
Following the refusal of the president to sign the Bill, the National Assembly removed the controversial section and resent it to him on 3rd August, 2018.
However, after the expiration of the 30-day constitutional duration allowed for the president to sign the Bill into law, one of his aides, Senator Ita Enang, revealed that he had again withheld his assent.
He made the disclosure in a statement entitled ‘Presidential decision to decline assent to Electoral (Amendment) Bill 2018.’
Enang, who is the Senior Special Assistant to the President on National Assembly Matters, said the president’s decision was not hidden from the two chambers of the parliament.
He disclosed that the president refusal to sign the Bill was owing to some drafting issues which had remained unaddressed following previous revisions to it. The aide added that his boss was left with no option than to return the Bill to the National Assembly because he was not constitutionally empowered to edit, correct, amend or in any manner alter its provisions to reflect appropriate intent before assenting to same.
Enang also expressed fears that should the president append his signature to the Bill, INEC would have only nine days to collate and compile lists of candidates in the 91 political parties.
“There is a cross-referencing error in the proposed amendment to Section 18 of the Bill. The appropriate amendment is to substitute the existing sub-section (2) with the proposed subsection (1A), while the proposed sub-section (1B) is the new sub-section (2A).
“The proposed amendment to include a new Section 87 (14) which stipulates a specific period within which political party primaries are required to be held.
“It has the unintended consequence of leaving INEC with only nine days to collate and compile lists of candidates and political parties as well manage the primaries of 91 political parties for the various elections”, he said.
He further noted that Sections 31, 34 and 85 which stipulated times for the submission of lists of candidates, publication of lists of candidates and notice of convention, congresses for nominating candidates for elections were equally not amended by the Electoral Amendment Bill.
“For clarity, may I provide some details of the provisions referenced; Clause 87 (14) states: The dates for the primaries shall not be earlier than 120 days and not later than 90 days before the date of elections to the offices.
“The Electoral Act 2010 referred to herein states in Section 31: that every political party shall not later than 60 days before the date appointed for a general election, submit to the commission the list of candidates the party proposes to sponsor at the elections.
“Section 34: That the Commission shall at least 30 days before the day of the election publish a statement of the full names and addresses of all candidates standing nominated.
“Section 85 (1): That a Political Party shall give the Commission at least 21 days’ notice of any convention, congress etc., for electing members of its executive committees or nominating candidates for any of the elective offices”, Enang said.

Options before National Assembly
In his statement announcing President Muhammadu Buhari’s refusal to sign the Electoral (Amendment) Bill 2018, Senator Ita Enang said “Mr. President invites the Senate and House of Representatives to address these issues as quickly as possible so that he may grant assent to the Electoral Amendment Bill.’’
This is an option before the National Assembly. The lawmakers may decide to heed the president’s advice by taking a second look at the Bill and address the grey areas.
The second option before the lawmakers is to override the president’s veto. Section 58 (5) of the 1999 Constitution, empowers the National Assembly to veto the president’s withholding of his assent by two-third majority votes. Once this is achieved, the Bill will automatically become law without the president’s signature.
It is however left to be seen how the required numbers of lawmakers needed to override the president’s veto will be gathered.

Danger ahead
A major amendment carried out by the National Assembly on the 2010 Electoral Act was the use of card reader for elections in Nigeria. The device which was first deployed at the polls in 2015 has been seen to be largely helpful in reducing rigging incidents.
A few months ago, the Independent National Electoral Commission (INEC) also declared that card reader will be mandatory in the conduct of the 2019 elections.
A top official of the commission, who spoke on the issue under condition of anonymity, said the device had been of immense help to INEC in the pursuit of its constitutional mandate in three ways.
According to him, the card reader had helped to confirm that the Permanent Voter Card (PVC) was issued by INEC, helped in confirming the correctness of the biometrics of the holder and also authenticating the identity of the holder through the fingerprints.
He added that plans were underway by INEC to upgrade the card readers to avoid a repeat of hiccups associated with the use of the device in 2015.
Consequently, it will not be out of place to suggest that the use of card reader is crucial to the success of next year’s election.
However, if the Electoral (Amendment) Bill 2018 was not passed into law, INEC will have to rely on provisions and guidelines prescribed by the 2010 Electoral Act for conduct of the 2019 general elections, which were largely manual.
Besides, adherence to electronic provisions in the Bill, like legalization of the card readers, electronic transmission of results from polling units to collation centres, among others, will no longer be compulsory. This may not augur well for the country.

Opposition party’s reaction
In its reaction to the president’s refusal to sign the Bill, the Peoples Democratic Party (PDP) asked the National Assembly to override Buhari’s veto.
In a statement by its National Publicity Secretary, Kola Ologbondiyan, the party alleged that the president’s action is an indication that his commitment to a free and fair 2019 elections was mere lip service.
“The clerical and drafting arguments put forward by President Buhari could not in any way outweigh the importance of amendments meant to engender free, fair, credible and transparent elections in 2019.
“The PDP therefore charges the National Assembly to stand with Nigerians in the overall quest for credible elections by immediately overriding President Buhari on the bill”, Ologbondiyan said.

Lawyers speak
Some senior lawyers have also expressed concerns over the president’s refusal to assent the Bill. They sought for synergy between the president and the legislators to ensure that the Electoral Act that will guide the forthcoming elections is put in place.
The lawyers however asked the National Assembly to invoke the relevant constitutional provision to override the president’s veto if he is not willing to sign the Bill.
Speaking on the issue, a Senior Advocate of Nigeria (SAN), Chief Mike Ahamba, want the National Assembly to override the president’s veto if he persistently decline to sign the Bill.
He said: “It’s a dangerous trend. Those who are advertising the president are too selfish to tell him the truth. So, I want to urge the president to sign the Bill. If he fails to do so, the National Assembly should override his veto and the Bill will become law”.
Another silk, Seyi Sowemimo (SAN) noted that for the president to have twice rejected the Bill, the only option left for the National Assembly was to override his veto.
“There is a constitutional provision for the National Assembly to override the president’s veto. That’s probably the only option left because I think this is the second time the president is withholding his assent to the Bill. I think it’s all politics.
“But I believe that if the lawmakers are strong enough, they should muster enough votes to overturn that veto and passed the Bill into law otherwise we have to rely on the existing 2010 Electoral Act for the forthcoming elections.”
A rights activist, Ebun-Olu Adegboruwa, blamed the president for not prompt in making his intention on the Bill known. He said he needs not wait till the expiration of the 30 days window allowed for him to append his signature before deciding on what to do.
He said: “Currently, the Independent National Electoral Commission (INEC) should be working with the existing 2010 Electoral Act. If the electoral body kept on doing so, we are still on target for the 2019 elections.
“But if the National Assembly should proceed to override the president’s veto by two-third majority and passed the bill into law, then there may be some challenge. This is because the time schedules and the proposition contained in the amended Electoral Act can no longer be reversed. Parties are already conducting primaries. Even the opposition Peoples Democratic Party has slated his own convention for October 6. All these are being done under the old Electoral Act in line with INEC’s timetable. My appeal therefore is for the Executive and Legislature to put their acts together.
“The Court of Appeal has already ruled in Abuja that the National Assembly has a right to regulate election. In that regard, I think that the president has not done well in terms of the tardiness and the length of time that it has taken him to indicate his unwillingness to assent. These are matters of urgency and I believed that the National Assembly should also examine the issues raised by the president which to me are just minor and typographical in nature. When I looked at the issues raised by the president, I was a bit taken aback that we can because of all these be holding 2019 general election to ransom. The election period is fast approaching and all issues surrounding the president’s unwillingness to sign the Bill should be looked into urgently”.
To a former National Secretary of the Nigerian Bar Association (NBA), Mazi Afam Osigwe, no efforts should be spared at ensuring that the Bill becomes law.
“Few weeks ago, I was on a television programme with the Senior Special Assistant to the President on National Assembly Matters (Senate), Senator Ita Enang, and I recalled him saying publicly that there were some observations made by the president regarding the Bill but that the National Assembly had corrected everything. So, you can imagine my shock when after saying it is well with the Bill, Senator Enang later disclosed that the president has declined assenting to it.
“However, all I can say without going to the merit of the issues is that if we are interested in making the card reader part of the forthcoming elections through which rigging will be reduced, no effort should be spared to ensure the passage of that Bill.
“If the concerns expressed by the president are genuine and one that will actually made way for a more workable Electoral Act, I believe the National Assembly should work on that and return it back to the president for him to append his signature. It is better to have an Electoral Act in place before the commencement of party primaries so that the state of the law that governs the election will be known”, he said.
Executive Director of the Socio-Economic Rights and Accountability Project (SERAP), Adetokunbo Mumuni, believed that if the lawmakers were determined to passing the Bill, they can override the president’s veto.
He said: “I think we need to scrutinize the reasons adduced by the president for refusing to sign the Bill. However, all of us are aware that the ultimate power to make laws in Nigeria resides with the legislators. They have procedures on how things are to be done and I think the lawmakers should know the next thing to do. If they are minded in passing the Bill, they can override the president’s veto by two-third majority and passed it into law. So, I don’t think the president can hold them to ransom”.
A Lagos-based lawyer, Destiny Takon, linked the president’s refusal to sign the Bill to his party’s agenda to acquire every state of the federation and Abuja by 2019.
“The rational question to ask is why would the president of a country refused to assent to a Bill regularly passed by the legislature in exercise of its routine role of legislation? In this case, a Bill to amend the Electoral Act. Knowing the very undemocratic and uncivil disposition of President Buhari, you can only tell that he and his party have a sinister motive to serve by his refusal to assent to the Bill.
“Buhari, though a beneficiary of a transparent electoral foundation, has shown his self-seeking agenda to bring down that foundation that was built to entrench integrity into our electoral process. We all are witnesses to what happened in the Edo, Ondo and Ekiti guber elections, just to mention a few.
“The seemingly irresistible agenda of the president and his party to acquire every states of the federation and Abuja for themselves by 2019, alone is what I finger as the crux of the matter. A popular candidate or party should not be wary of the sequence an election is conducted by INEC.
“The president is only challenging the authority of the National Assembly to make law, by refusing to give constitutional assent to a duly passed Bill, because he fears the obvious advantage the amended Act would give to the opposition and the electorate in the 2019 elections and beyond.
“I can only advice the National Assembly to invoke its own power to veto him, so that Nigerians can have an Act that ensures credibility in our electoral process, which in turn, produces good, purposeful and popular governance,” he said.

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